Thakurain Raj Rani and Others v. Thakur Dwarka Nath Singh and Others

ThnkurahJ. Raj do hereby execute this agreement in favour of my cousin aforesaid

Eani that in the month in which the said cousin may execute the said and Of/""' will in my favour.and that ol my sons and lays the same along

v. with an application before the Deputy Commissioner, Sitapnr 'fhnl,:ur Dwarka district, for sanction of the Members of the Board of Revenue, I

Nath Singh shall from the 1st date of the month following that month con-and Othera. tinne to pay the said cousin the sum of Rs. 50 in cash every

month during his life so long as the said will remains in force ...... If I fail to perform the said contract the said cousin has power to have the same performed by me th1·ougb the Court." This agree· ment was registered on the 11th January. On the 18th January, S submitted a draft will for sanction and the will as amended and sanctioned was executed on the 28th .July, 1904. 'rhis will pro-vided as follows: "after my death my wife for her lifetime shall l'emain in possession of my entire estate ...... without the po,ver of any sort to transfer the said properties and rights, that on the death of the said wife all the aforesaid property and rights shall devolve on my cousin G with a,11 proprietary powers ancl that on the death of G, the said entire property and rights shall deYolve on X, Y, Z, sons of G, in the following shares .... " The will also provided for maintenance for the daughter, sister, aunt and mother of S. On tho application of G's sons (G having died) letters of administration with the will annexed were granted to them by the Chief Court of Oudh and this decision was affirmed by the Privy Conncil on appeal in 1937. 'rhe heirs of S thereupon insti-tuted a suit against the sons of G for a declaration that the will was inoperative and ineffectual and that G's sons had in any case no right to the properties of S, as S had no animns testandi and G had also failed to pay Rs. 50 to S as agreed:

Held, (i) that the deed of agreement and the will formed parts of one transaction and formed one contract, consideration for the will being the agl'eement, and consideration for the agreement be-ing the will;

(ii) as the Privy Council had decided that the will was the last will and testament of S and granted letters of administration, the question of ani1nu.s testandi was res jndicata;

(iii) with regtml Lo tbe plea that the monthly payment of Hs. 50 was a condition precedent to the validity of the will and that by reason of the non-fulfilment of this condition the will had become inoperative, such a plea \Vas also barred by res judicata as the Privy Council had granted letters of administration; and even on the n1erits the plea was untenable as the wife and other relations of the testator had also certain rights under the will which did not depend on the monthly payment by G;

· (iv) the question whethel' the payment of Hs. 50 wae a cou- <li~ion precedent to the vesting of the legacy in G or G's sons was not, however, r~s j?ldiMta and it was open to tbe plaintiff to raise 196& such a plea;

(v} on a proper interpretation of the terms of the agreen1ent, Thakurai·n Raj the payment of Rs .. 50 per month was not a condition precedent to Rani t h e vestmg · o fhl t e egacy m 'Gb , ut merely a consideration, and andOthers the plaintiffs' remedy was to enforce the agreement if it was not v. duly performed; Thakur Dwarkti Nath Singh ( vi) that as G obtained a vested remainder uuder the will, and Others. his interest did not [all into the residue on his death before the widow, but vested in his sons; and as the bequest to G did not lapse there was no question of anJ·· resulting trust or of any intes-tacy with respect to the remainder, and G's sons were entitled to the estate under the will.

CIVIL APPELLA'l'F. JuRISDW'.rlO)!: Civil Appeal No. 153 of 1951.

Appeal from the Judgment and Decree dated 2nd January, 1946, of the Chief Court of Avadh in First Civil Appeal No. 9 of 1940 arising out of the Decree dated 6th Xovember, 1939, of the Court of Civil Judge in Regular Suit No. 36 of 1937.

Dr. Bakshi Tele Chand (Onlcwr Nath Sn:vastal!a, with him) for the appellants.

Achhru Rarn (Bishan Singh, with him) for the res-pondents.

1953. Jammry 23. The Judgment of the Court waH delivered by

BHAGWA'L'I J.- -This is an appeal from the judgment and decree passed by the late Chief Court of Ondh, ttffirming the judgment and decree passed by the Civil Judge of Sitapur, dismissing the plaintiffs' suit.

One, Thakur Shankar Bux Singh, proprietor of the Estate known as Rampur Kelau, situated in District Sitapur (Oudh) was heavily indebted and the estate had been in the possession of Deputy Commissioner of Sitapur as receiver from 1892 up to 11th July, 1901.

Thereafter he was declared a disqualified proprietor under the provisions of Section 8 (D) (1) of thn C.P.

Court of Wards Act (r.P. Act Ill of 1899) and the Court of Wards took possession of the estate on the 1st August, 1901. Cnder Section 34 of the Aet he was 1953 not competent to dispose his property by will without

the consent in writing of the Court of \Vards, though 1.'hakurain Raj prior to the 1st August, 1901, he had made four succes-

llani and Others sive wills, the last being dated 19th June, Hl01, under

v. which he gave his estate absolutely to his wife. On ~·h~/,nr Dwarka the 30th November, 1901, he made a will giving a life Aath Singh interest to his wife and the remainder over to his cousin and Others. Ganga Bux Singh after providing for certain legacies by Bhagwati J. way of maintenance in favour of his three daughters,

his father's sister and his mother. The Court of Wards withheld its consent to this will which thus fell through. On the 7th January, 1904, Ganga Bux Singh executed in his favour a registered deed of agreement agreeing to pay him Rs. 50 per month during his lifetime with effect from the month in which he would execute a will in.favour of Ganga Bux Singh and his sons and submit the same for sanction of the Members of the Board of Revenue. A draft of the will was accordingly prepared by him on the 18th January, 1904, under which he gave a life interest to his wife and the residue of the property to Ganga Bux Singh and after him to his sons after pro-viding legacies for maintenance in favour of his daughters, father's sister and mother. The Board of Revenue intimated on the 25th May, 1904, that it would not withhold its consent to a will similar to that contained in the draft but altered in the light of the proposals contained in the further letter dated 27th April, 1904. He thereupon duly made and published a will on the 28th July, 1904, in accordance with the suggestions contained in the Board's letter dated 25th May, 1904, cancelling iill the previous wills executed by him. It appears that he handed over tho original of this will to Ganga Bux Singh Lut did not give any inti-mation of the execution thereof to the authorities and the authorities could only come to know of the same when Ganga Bux Singh gave the original will to the Special Manager on or about the 19th December, 1905. He appears to have changed his mind thereafter and having embraced Christianity intended to marry a Christian woman and submitted to the Court of Wards on the 8th June, 1906, the draft of a new will which he intended to ex~cute in favour of his UhriRtian wife. 1963 The Board withheld its consent to that new will and 7,1 -. R intimated on the 13th July, 1906, its refusal and also wk~:~:;• aJ communicated thereby the withholding of its consent and Others to the will already executed by him on the 28th July, v. 1904. A further attempt by him on the 21st Novem-1'huku,- Dwarku ber, 1906, to obtain the consent of the Court of Wards Nath Singh to another draft will was also unsuccessful and the will and Others. datedthe 28th July, 1904, was the only last will a.nd BltagwatiJ. testament executed by him and got registered after consent obtained from the Court of \Vards.

Shankar Bux Singh died thereafter on the 28th July, 1922, and he being a Christian at the time of his death succrnssion to his property was governed by the Indian Succession Act. His wife got l /3rd of the estate and the remaining 2 /3rds were divided in equal shares between his surviving daughter and the son of a pre-deceased daughter of his. Mutation was effected in the records of rights and the name of the widow was shown there as the owner of the estate in his place and stead. The Court of Wards relinquished charge of the estate sometime in November, 1925. The widow executed on the 16th August, 1927, a deed of gift con-veying the bulk of the estate to her daughter and the son of the pre-deceased daughter. She also executed another deed of gift in the same year conveying the rest of the properties and on the 8th September, 1928, Ganga Bux Singh filed a suit in the Court of the Sub-ordinate Judge of Sitapur for a declaration that under the aforesaid will she had only a life interest in tht.'

property and the transfers made by her were void.

This suit was contested by her and one of the defences tRken was that Ganga Bux Singh could not maintain'

the suit without first obtaining letters of administra-tion with the will annexed. This defence was rnao. upheld and the suit wr.s dismissed on the 14th July,

Ganga Bux Singh having died in the meanwhile on the 19th October, 1929, his sons applied for letters of administration with the will annexed on the 25th September, 1930, on the original side of the Chief Court of Oudh. This application w&s opposed by the 1963 widow and other heirs of Shankar Bux. Singh inter alia

on the ground that the will had been executed without Thakurain Raj the sanction of the Court of Wards. Mr. Justice Kisch

Rani and Others delivered an elaborate judgment, negatived a.JI the

v. objections and granted letters of administration with Thakur Dwarka the will annexed to the sons of Ganga Bux Singh on

Nath Smgk the Hith November, l93l. An appeal filed by the and Others. widow and heirs of Shankar Bux Singh against that Bhagwati J. decision was allowed bv the Bench of the Chief Court

of Oudh at Lucknow oi1 the 8th September, 1933, and the orders passed by the lower court granting letters of administration with the will annexed were set aside. The sons of Ganga Bux Singh took an appeal to the Privy Council and their Lordships of the Privy Coun-cil on the 7th May, 1987, reversed the decree of the Appeal Court and rrn;tored the decrne passed by Mr. Justice Kisch. Their Lordships however observed that the only effect of their decision was that letters of administration with a copy of the will annexed must be granted as prayed but that would not in any way lJl'ei·udice anv proceediiws a"ainst anv of the benefi-J b b v ciaries which may be open to the respondents or any of them.

On the 9th tleptem ber, 1987, the widow, the claughter and the son of the pre-deceased daughter of Shankar Bux Singh, the plaintiffs, filed the suit out of which this appeal arises, against the three 8ons of Gang·a Bux Singh, the defendants, for a declaration that the will dated the 28th July, 1904, wa.s inoperative and ineffectual and that in any case the defendants had no i·ight, title or interest in the properties in suit, that plaintiff 1 was entitled to hold the property in suit under the will of Shankar Bux Singh dated 19th June, 1901, or that the plaintiffs 1 to 3 were entitled to the same as heirs-at-law of Shankar Bux Singh deceased under the provisions of the Indian Succession Act, and for further and other reliefs. In the plaint they alleged that the will was inoperative as Shankar Bux 8ingh had no animus testandi and that it was void and inoperative in respect of the testamentary disposition in favour of Ganga Bux Singh am\ his sons because Ganga Bux Singh 195.1 failed to perform his hi part JI of the contract as regards the payment o f, mont y a owance and the defendants 'J. 1hakurai'n Raj Rani therefore could not take advantage of or claim any ""d Others ben!!fit under that testamentary disposition and further v. the payment of the said allowance being a condition Tha;·ur D~mka precedent and the condition not having been fulfilled J>.ath Singh t h e d. 1spos1 't' rnn I 1ecame mopera · t' 1ve. Th . e d e f' en d ant 3 and Others. filed a written stat;ement on the 7th February, 1938, Bhagwati J. eontesting the plaintiff's claim. He contended that the plea as to the validity or effeet of the will was barred hy res j11dicata by virtue of the judgmt>n t of the Privy Council ch1ted 7th May, 1937. He denied that the will was executed in consideration of the agreement. He also denied that there was any contingent or condi-tional contract or any trace of the alleged condition in the whole of the correspondence between Shankar Bux Singh and the Board of Revenue.

The learned Civil .Judge, Sitapm, after considering the cvidenee, oral as well as documentary, led before him held that the will as well as the agreement formed one contract, that Ganga Bux Singh had failed to per-form his promise or his part of the contract, that the only point which was agitated before their Lordships of the Privy Council was as regards the consent of the Court of 'Vards and that therefore even though the plaintiffs were precluded from disputing the genuine-ness of the will they were not precluded from seeking a declaration to the effect that the defendants were not entitled to any benefit under the will, and that the decision therefore did not operate as res judicata so far as issues in the present case were concerned.

He however held that the contract clearly provided a remedy for breach on the part of either party, that Shankar Bux Singh did not in fact cancel the will and could not he said to have treated it as inoperative, that Ganga Bux Singh acquired a vested interest in the estate on the death of the testator and that on his death that interest devolved on his sons amongst whom were the defendants in the suit and that the plaintiffs were not entitled to any relief as claimed, T)le

920 SUPREME COCRT REPORTS [1953]

1953 plaintiffs filed an appeal to the Chief Qourt of Oudh.

The Chief Court of Oudh negatived the contention that Tl1akurai11 Raj Shankar Bux Singh h a d no animu8 · testan<ii J · an d t h at

Rani and Others it was a will in form only and not in substance, hold-

v. ing that it was barred by res judicata by reason of the Thakur Dwarh1 decision of their Lordships of the Privy Council. It

Xa;h Singh also negatived the contention s· that the bequest in and Other.1·, .r iavour o f Ganga B ux mg I was a con d' 1t10na . 1 b equest 1 Bhagwati .r. or that Ganga Bux Singh having f~ailed to fulfil his

obligation to pay the gujara his original chamcter as a legatee changed into that of a trustee and he must hold the beneficial interest for the testator or his heirs. The appeal was therefore dismissed with costs. The plaintiffs applied for leave to appeal to the Privy Council and the necessary certificate was grante<l hy the Chief Court of Oudh on the 8th August, 1947.

It is necessary at the outset to set out the deed of agreement and the will executed by Ganga Bux Singh and Shankar Bux Singh respectively on dates the 7th January, 1904, and the 28thJuly, 1904. The deed of agreement dated the 7th .January, 1904, ra.n as under:-

"vVhereas, my cousin Thakur Shankar Bakhsh Singh, Taluqdar of Rampur Kalan, has proposed to make a bequest of his taluka, immovables, movables, rights etc. in favour of his wife and after her death in my favour and that of my sons Dwarka Nath Singh, Ajodhiya Nath Singh and Tirbhuwan Nath Singh, there-fore by way of consideration for this concession and favour, I, the executant, out of my own free will do hereby execute this agreement in favour of my cousin aforesaid that in the month in which the said cousin might execute the said will in my favour and that of my sons and lays the same along with an application before the Deputy Commissioner, Sitapur district, for sanction of the Members of the Board of Revenue, I shall from the 1st date of the month following that month, continue to pay to my said cousin Rs. 50 in cash every month during his life, so long as the said will remains in force and under this contract I make my person liable and hypothecate the same by virtue of this agreement. If I, the;·executant, fail to perform 1963 the said contract the said cousin has power to have Th k-. R the same performed by me, the executant, through " ';;~7 •J Court. If the will mentioned above executed by the and Other• said cousin, be not sanctioned by the Members of the v. Board of Revenue or if under any circumstance, the Thakur D~""ka said cousin may himself revoke the said will, then from Nath Singh the time of revocation or refusal by the Board of and Others. Revenue the said cousin shall not be entitled to receive Bhagwati J. the aforesaid monthly amount of Rs. 50 and whatever money the said cousin might have received from me, the executant, up to the said refusal or revocation the said cousin shall necessarilv be bound to refund that money to me, the executaii.t."

The will dated the 28th July, 1904, was executed by Shankar Bux Singh in the terms following:--

"I am Thakur Shankar Baksh alias S. John son of Thakur Anant Singh, Taluqdar of Rampur and Gran-tee of Piprawan, district Sitapur. Out of my own free will, inclination and accord and consent I make a will that after my death my wife for her lifetime shall remain in possession of my entire Ilaqa (estate) as well as the movable and immovable property, left by me, together with the rights etc., relating to the said properties, without the power of any sort to transfer the said properties and rights, that on the death of the said wife all the aforesaid property and the rights shall devolve on my real cousin, Ganga Bakhsh with all the proprietary powers, and that on the death of Ganga Bakhsh the said entire property and the rights shall devolve on Dwaraka Nath, Ajodhia Nath and Tirbhuwan Nath, sons of Ganga Bakhsh, like Ganga Bakhsh himself, in the following shares: Dwaraka Nath annas 6, Ajodhia Nath annas 5, Tirbhuwan Nath annas 5: and that the persons mentioned below shall continue to get the maintenance allowance (Guzara) accord-ing to the amounts and conditions noted below:-·-

Musammat Permeshuri, my eldest daughter, married at Allahabad to the son of Rai Anant Ram, generation 19;3 after generation, (limited) to male issue,. Rs. 100 per

month;

Thakurain Raj Musammat Chandrani, my younger sister, married

flani and Othm to Rai Raghubir Bakhsh, son ofRai Kunwar Bahadur,

v. Rais of Shahabad, district Hardoi, generation after Thakur Dwarka generation (limited) to male issue, Rs. 60 per month;

No.th Singh Mussamat 1-toop Rani, my real paternal aunt and Others,

(father's sister), wife of Munshi Chedi Prasad deceased, Bhagwati J. Rais of Qasba Mahona, district Lucknow, generation

after generation, (limited) to male issue, Rs. 45 per month;

Musammat Sohni, my mother for her life, Rs. 70 per month.

* * * * Be it also known that my estate (Ilaqa) is under the Superintendence of the Court of Wards rmd the Hon'ble Members of the Board of Revenue have granted me power to execute the will so I do hereby execute this my last will cancelling all the previous wills executed by me."

• It is clear from the terms of the deed of agreement that Ganga Bux Singh agreed to pay Rs. 50 in cash every month during the lifetime of Shankar Bux Singh in consideration of Shankar Bux Singh having pro-posed to make a bequest of the remainder in favour of Ganga Bux Singh and his sons and that ·it was after the deed of agreement was got registered by Ganga Bux Singh on the 11th .January, 1904, that the draft of the will was submitted on the 18th January by Shankar Bnx Singh to the Court of vVards. It was this draft of the will amended as it was by the letter dated 27th April, 1904, that was engrossed in the will which was ultimately executed on the 28th July, 1904, after the letter of sanction obtained from the Board on 25th May, 1904. The learned Civil Judge under the circumstanr:i>s uame rightly to the conclusion that the <leed of agreement and the will formed part of the same transaction, that the consideration for the will was the deed of agreement and the consideration for the agreement was the will and that the wiU

as well as the agreement formed one contract. This 1v53 finding was not challenged .._., beforn . the Chief Court of T' k-. R 0 udh and could not be challenged before us. There rta u·ra1n a; Rani was also a further finding of fact which was recorded and Other, by the learned Civil Judge and it was that Ganga Bux v. Singh failed <tnd neglected to make any payment to 1'hakur JJ_warka Shankar Bux Singh in terms of the deed of agreement Na%'0 8Z"u" even though Shankar Bux Singh executed the will and "" t "'· laid the same along with the application before the Bhagwati J. Deputy Commissioner, Sitapur, for sanction of the Members of the Board of Revenue and that Ganga Bux Singh thus failed to perform his part of the contract.

This finding also was not challenged before the Chief Court of Oudh and could not be challenged before us.

The question therefore which falls to be considered by us is what is the effect of the failure on the part of Ganga Bux Singh to make the payments to Shankar Bux Singh in terms of the deed of agreement. It was urged by Dr. Tckchand, who appeared for the plaint-iffs before us that by reason of such non-payment and the breach of contract on the part ofG;onga Bux Singh the will became ineffective and inoperative, that the payment of Rs. 50 per month during the lifetime of Shankar Bux Singh was a condition precedent to the vesting of the legacy in favour of Ganga Bux Singh and that condition not having been fulfilled the legacy did not vest in Ganga Bux Singh and that on a true construction of the terms of the will Ganga Bux Singh acquired no vested interest in the remainder. He also urged that the scope of the Privy Council judgment was misunderstood by the Chief Court of Oudh and that both the questions as regards anhn1ls testandi and the payment of Rs. 50 per month being a condition precedent though they were bareed by res judicata in regard to the due execution of the will were still open to him as affecting the right of Ganga Bux Singh to the legacy which was provided for him by Shankar Bux Singh under the will.

In regard to the hist contention urged by Dr. Tek-chand both the courts below were of the opinion that the question of animus testandi was barred by res

924 SUPREME COURT Rl!JPORTS [1953]

1953 ,judicata. It was held by their Lordships of

. R . the Privy Council that the will in 'dispute was I hakurain "J not revoked and that it was the last will and

Rani testament of Shankar Bux Singh. That decision neces-and Others I

v. sarily meant that the testator when he appended Thakur Dwarka his signature to the will was in a sound and disposing

Nath Singh state of mind, was a free agent and duly executed the and Others. will in accordance with the law. The decision was Bhaywati J. conclusive as regards the testamentary capacity, due

execution and the representative title of the person to whom the letters of administration with the will I annexed were granted. It was not open therefore to the plaintiffs to contend that the will which was exe-cuted by Shankar Bux Singh was a will merely in form and not in substance. The question of animus testandi . was therefore barred by res _judicata. In regard how-ever to the question whether the bequest in favour of Ganga Bux Singh could t.ake effect by reason of default in payment the decision of the Privy Council did not constitute res _judicata and it was open to . the plaint' iffs to urge that contention. Both the courts below therefore allowed the plaintiffs to agitate that ques-tion tl-.ough they came to a conclusion adverse to the plaintiffs. We are of the opinion that there was no bar of res _judicata and the courts below were right in allowing the plaintiffs to agitate that question. The payment of Rs. 50 per month to Shankar Bux Singh during his lifetime might be a condition precedent to the whole will coming into operation or might be a condition precedent to the vesting of the legacy in favour of Ganga Bux Singh. If the plaintiffs urged the former position that plea would certainly be barred by res _judicata. No court would grant a probate or letters of administration with the will annexed in regard to a will w':i.ich has ceased to be operative and was a mere scrap of paper. The plaintiffs could not therefore be heard to say that by reason of the non-fulfilment of the condition precedent the whole will had become in-operative, for that would run counter to th.e decision of th(} Privy Council. Even on merits such a position would be untenable for the simple reason that besides Ganga Bux Singh there was the widow, who was given I91iJ a life interest and there were the three daughters, the 1at " h er ' s sister · an d t h e mother w h o were given legacies by Thakurain Raj Rani way of maintenance and they were certainly not guilty and Others of non-fulfilment of any condition precedent. The will v. would certainly therefore stand so far as they were con-Thakur Dwarka cernedand the whole effect of the non-fulfilment of the Nath Singh condition precedent qua Ganga Bux Singh would be and Others. to prevent the vesting of the legacy in his favour. Blmgwati J.

The latter position therefore would be available to the plaintiffs and they could contend that by reason of the non-fulfilment of the condition precedent by Ganga Bux Singh the legacy provided in his favour did not vest in him. If the payment of Rs. 50 per month therefore constituted a condition precedent the plaintiffs were on firm ground and that position coulrl not and was not contested before us by the learned counsel appearing for the defendants. It therefore re-mains to be considered whether the payment of Rs. 50 per month to Shankar Bux Singh during his lifetime co11Rtituted a condition precedent to the vesting of the legacy in favour of Ganga Bux Singh.

There is no doubt, as held by the learned Civil Judge, that the consideration for the will was the deed of agreement and the consideration for the agreement was the will and that the will as well as the agreement formed one contract. But for Ganga Bux Singh having executed the deed of agreement Shankar Bux Singh would not have forwarded the draft will to the Court of Wards for its sanction and he would also not have executed the will on the 28th July, 1904. The contract was an overall contract under which both the parties had to perform their respective obligations. The obli-gation on the part of Ganga Bux Singh was to execute the deed of agreement, agreeing to pay the moneys to Shankar Bux Singh in accordance with the terms thereof. The obligation on the part of Shankar Bux Singh was to execute the will and submit it to the Court of Wards for its sanction. Both these obligations were fulfilled by the parties and the two documents were supported by consideration and became Linding

!:126 SUPREME COURT REPOR'h:l [1953] 195J on beth the the parties. The non-perfonnanoe of the

agreement to pay by Ganga Bux Singh"constituted at '11hakurai-n Raj best a failure to fulfil his obligation '-' and '-' Shankar Bux

Rani and Others Singh became entitled to pursue his rights and reme-

v. dies against Gangti Bnx Singh by reason of the breach Thakur Dwarka of contract by him.

Nath Singh lt was urged bv Dr. Tekchand h at the cons1derat10n . . t and Others. here constituted J tt condition precedent and that the Blwgwati J. non-pa,yment of Rs. 50 per month by Ganga Bux

Singh constituted non-fulfilment of condition prece-dent.

He relied upon the observations of Chief Justice \Vills in Acherley v. Vernon, 125 English Reports llOG at page llOS (Willes 153 at page 156):

"I know of no words that either in a, will or deed neoessm·ily make a condition precedent, but the smno words will either make a condition precedent or sub-sequent according to the nnture of the thing and the intent of the parties. If therefore a man devise one thing in lieu and c01rnideration of another, or agree to do anything or pay a sum of money in consideration of anything to be done, in these cases that which is the consideration is looked upon as a condition precedent. So is the case of Peters v. Opie, 1 Ventr. 177, and 1 :Saund. 350. If a man agree to pay a sum of money to another pro lubore suo in pulling down a house, the pulling down of tho house is a condition precedent. So is the case of Thorpe and Thorpe, 1 Salk. 171, where a man agreed to pay a sum of money to another he re-leasing the equity of redemption in certain lands. And so is tb.e case of 'l'wmer v. Ooodwin, adjudged by Lord "Macclesfield and the rest of the Judges of B. R. upon great consideration, P. 13 Anne, in which case Good-win wa.s to pay Tu111er 1500!. he assigning a judgment. In all which mises it was holden that the party vd10 was to receive the money was not entitled to demand it until he had performed that which was the considera-tion of the payment, and which was considered in all these cases to be in the nature of a condition prece-dent.

So likewis.e if it plainly appear to be the intent of 1953 the testator that the devisee shall not have the bene-7,1 - fit of the devise unless he perform a certain act enJ'oin-iakumin Ilaj ed him by the devisor, this is a condition precedent ; Rani and Others and the devisee shall have no benefit of the devise v. until he perform it, even though the condition be never Thakur Dwarka so umensonable if it be not illegal or impossible; for Naih Singh CUJUB · est d ure eJUB · eBt d iBponere. · " and Others,

These observations were particularly relied upon by Bhagwati J, Dr. Tekchand in support of his contention that the payment of .Rs. 50 per month to Shankar Bux Singh during his lifetime constituted a condition precedent.

to the vesting of the legacy in favour of Ganga Bux Singh.

While recognising the force of these observations we are constrained to observe that the terms of the deed of agreement negative any such contention. The agree-ment itself provided what was to happen if payment was not made in accordance with the terms thereof. If Ganga Bux Singh failed t,o perform the contract Shankar Bux Singh was to have the power to have the same performed by Ganga Bux Singh through Court. This consequence could not be contemplated if the payment constituted a condition precedent and the non-fulfilment of the condition precedent was to have the effect of rendering the agreement inoperative. In that event the agreement itself would become inoperative and no rights nuder the agreement would survive to Shankar Bux Singh.

The right which was therefore given to Shankar Bux Singh to have the agreement performed by Ganga Bux Singh contemplated the existence and the continu-ed existence of the agreement so as to enable Shankar Bux Singh to hold Ganga Bux Singh to its performance.

The continued existence of the contract was in con-templation of the parties and so far as Ganga Bux Singh is cmwPrned it was at no stage contemplated that he could forego the performanee of the obligation on his part to pay Rs. 50 per month to Shankar Bux Singh during his lifetime so long as the will stood 1111revolrnd, 19.53 It is significant to observe on the otl;ter hand that Tl ku--: R . two events were contemplated so far as Shankar Bux

w ;:~7 OJ Singh himself was concerned. The one was the with-and Others holding of the consent of the Court of Wards and the

v. other was the revocation of the will by Shankar Bux Thakur D':'arka Singh himself. The sum of Rs. 50 per month was agreed

Nath Smgh to be paid bv Ganga Bux Singh to him from the ·u aad Others. mont h w h en "sh an k ar B ux s. mg h execute d th e w1 Bhagwati J. and laid it before the Court of Wards for its

sanction. The Court of \Vards might withhold its consent to the will and in that event whatever pay-ments were made during the interval by Ganga Bux Singh to Shankar Bux Singh had to be refunded by the latter. Even though the Court of Wards might sanction the will Shankar Bux Singh might later on revoke the will and the consequence of such revoca-tion was also provided in that Shankar Bux Singh was to refund to Ganga Bux Singh the amounts which he had paid up to the time of revocation to Shankar Bux Singh in accordance with the terms of the agree-ment. It has to be observed moreover that all these constituted independent obligations on the part of both the pacties. The obligation on th.e part of Ganga Bux Singh was so long as the will stood unrevoked to pay to Shankar Bux Singh Rs. 50 per month during his life-time and the obligation on the part of Shankar Bux Singh was to obtain the consent of the Court of Wards and to leave the will unrevoked during his lifetime. These obligations were independent of each other and the consequences of the non-performance of these obli-gations on the part of each of the parties were expressly provided in the agreement itself. It could not therefore be contended that the payment of Rs. 50 per month to Shankar Bux Singh during his lifetime constituted a condition precedent to the vesting of the legacy in his favour. That was merely a consideration provided by Ganga Bux Singh for the execution of the will by Shankar Bux Singh in his favour and if Ganga Bux Singh committed a breach of the agreement the only result was that Shankar Bux Singh would become \)ntitled to recover the amount due on such default from Ganga Bux Singh by having recourse to a court 1953 of law. The contract would continue to subsist, the parties being relegated to their rights and remedies Thakttrain Raj Rani thereunder as contemplated by the parties. and Others hln spitefoRf th~ 0 non-paymehnt bSyhGakngaBBuxSS!nghh ?f ThakurvDwarka t e sum o . ~· l> per mont to an ar ux mg m Nath ;ngh accordance with the terms of the agreement at no time 8 and Others. did Shankar Bux Singh revoke the will nor did he pursue Ganga Bux Singh in a court of law for the re-Bhagwati J, covery of the amounts in respect of which Ganga Bux Singh was in default. He left the will unrevoked and on his death the will became effective as his last will and testament and operated to vest in Ganga Bux Singh an interes1i in the remainder as therein provided.

There is nothing in the will itself which in terms makes the bequest conditional on regular payment of the amount under the agreement.

The argument which was advanced by Dr. Tekchand based on section 81 of the Indian Trusts Act could not avail him for the simple reason that the intention of Shankar Bux Singh had to be gathered as on the date of the execution of the will and not at any subsequent time thereafter. That intention was clearly to effect a testamentary disposition of the remainder in favour of Oanga Bux Singh. It was certainly farthest from the thought of Shanlrnr Bux Singh not to dispose of the beneficial interest in the remainder in favour of Ganga Bux Ringh with the result that there could neither be a secret trust nor a trust of imperfect obligation created in favour of the heirs at law of the testator Shankar Bux Singh. The argument of Dr. Tekchand that the remainder did not vest in Ganga Bux Singh but fell into residue by reason of his having pre-deceased the widow of Shanlrnr Bux Singh is equally of no avail.

The legacy in favour of Ganga Bux Singh was a legacy of the remainder of the estate whi~h vested in Ganga Bux 8ingh but was deferred in possession till after the extinction of the life interest created in favour of the plaintiff l. Ruch vested interest could devolve upon the dofondants, the heirs and legal representatives of

930 SCPREME COURT REPORTS [1953]

19.13 Ganga Bux Singh on the death of th() latter and the 7'hakurain llaj defendants were therefore as the heirs and legal repre-

flani sentatives of Ganga Bux Singh since deceased rightly and Other., entitled to the same. As the bequest was not

v. conditional and did not lapse there ~onld be no ques-Thakur Dwarka ,.. t' ion o f any resu lt' mg t rus t or o f any rntes ' t acy wit · h

h h N at ui.11rf respect to the remamder. • • and Others.

The result therefore is that the appeal fails and must Bhagwat-i J. be dismissed \Vith costs.

Appeal dismissed. Agent for the appellants: R11;iinder Narain.

Agent for the respondents: 0. P. Lal.

1953 BEJOY GOPAL MUKHERJI I

Ja;n, 28. v.

PRATUL CHANDRA GROSE. I

[MEHR CHAND MAHA.JAN, S. R. DAs and

BHAGWA1'I JJ.]

Landlord and tenant-Permanent tenancy-Evidence-Infer-ence froin po.<!session froni generation to generation, transfers, erec-tion of structu,res and other ci1:cnmsttinces-J1Iere increase of rent, effect of.

Permanency of tenure does not necessarily imply both fixity of rent and fixity of occupation and the fact of enhancement of rent Joes not necessarily n1ilitate n,gainst the tenancy being a per-manent one. When, therefore, in a previous suit the only <iues-tion was whether the jama could be increasen and the jama was increased :

Held, that this decision did not operate as res judicata on the tJ.U8sLio11 of permanency of the tenure in a snbsoquent suit for ejectment.

Shankar Rao v. Sambhu Wallad (1940) 45 C.W.N. 57; Jogen· dra Krishna Banerji v. Szibashini Dassi (1940) 45 C.W.N. 590, Probhas Chandra Mallick v. Debe-ndra Nath Das (1939) 43 C.W.N. 828, relied on.

'Thiere possession for generations at a uniforin rent, or construe· tion of permanent structures hy itself may not be conclusive proof· of a permanent right but the cumulative effect of such facto coupled with other facts may lead to the inference of • permanent